“SECRETARY OF LABOR,Complainant,v.VERN’S MANUFACTURING, INC.,Respondent.OSHRC Docket No. 89-3082_ORDER _Before the Commission for review is a decision and order ofAdministrative Law Judge James A. Cronin, Jr., granting the Secretary’sMotion to Vacate Late Notice of Contest.Vern’s Manufacturing, Inc. is a family-run livestock equipmentmanufacturer in Wessington, South Dakota, appearing in this case withoutcounsel, or pro se. As a result of an inspection of Vern’s facility by arepresentative of the Occupational Safety and Health Administration onJuly 14, 1988, the Secretary of Labor issued to Vern’s a notification offailure to abate a violation of the machine guarding standard at 29C.F.R. ? 1910.212(a)(3)(ii). More specifically, the Secretary allegedthat Vern’s had not guarded the points of operation of two Dvorak ironworker machines in its fabrication shop, as required by an earlieruncontested citation. She proposed an additional penalty of $2,100 forthis alleged failure to abate.Under section 10(b) of the Act, 29 U.S.C. ? 659(b), an employer whowishes to contest a failure-to-abate notification must do so \”withinfifteen working days from the receipt of notification must do so \”withinfifteen working days from the receipt of notification.\” At Vern’srequest, the OSHA Area Director in Bismarck, North Dakota, held aninformal conference with Vern’s representatives on September 7, 1988,during the fifteen-day contest period. Vern’s representatives broughtone of the machines at issue to the informal conference and, accordingto the Secretary, the Area Director again explained to them how toproperly guard the machine.Over the next year, the Secretary sent notices to Vern’s that thepenalty of $2,100 was due. Vern’s sent copies of these notices to theCommission, as well as other documents in which it indicated that itconsidered the informal conference to have constituted its notice ofcontest. On the basis of those submissions, the Commission docketed thecase. The Secretary filed a Motion to Vacate Late Notice of Contest.Vern’s filed a document in opposition to this motion, generallyresponding to the assertions in the Motion with its own view of theevents and introducing a letter that it had written to the OSHA AreaDirector stating its position that the informal conference and phonecalls to him served as a notice of contest.The judge concluded that Vern’s failed to notify the Secretary in atimely manner of its intent to contest the notification of failure toabate. He therefore granted the Secretary’s Motion and dismissed thenotice of contest.Vern’s then filed documents with the Commission that we construe as aPetition for Discretionary Review, and on March 23, 1990, ChairmanFoulke directed review of the case.Because there has been no hearing in this case, nor any affidavitsfiled, the record lacks sufficient facts upon which to base adetermination as to whether the informal conference, phone calls, andletter satisfied the requirement of a timely notice of contest. _SeeAtlantic Marine, Inc. v. OSHRC,_ 524 F.2d 476, 478 (5th Cir. 1975)._Cf_._Pav-Saver Manufacturing Co., _12 BNA OSHC 2001, 2002-03, 1986-87 CCHOSHD ? 27,676 (No. 84-733, 1986), _appeal filed_, No. 87-1418 (7th Cir.Mar. 18, 1987) (notice of contest found sufficient based on affidavitand response admitted into evidence); _Merritt Electric Company, Inc.,_9 BNA OSHC 2088, 1981 CCH OSHD ? 25,556 (No. 77-3772, 1981) (notice ofcontest found sufficient based on testimony as to employer’smisunderstanding).Moreover, if it is found that Vern’s did not meet the notice of contestrequirements of section 10(b) of the Act, then the judge shoulddetermine whether Vern’s is entitled to relief under Rule 60(b) of theFederal Rules of Civil Procedure due to factual circumstances arisingduring the informal conference.Because the record in this case lacks the facts necessary for properconsideration of these issues, and especially considering the _pro_ _se_status of the cited employer, we remand this case to the judge for himto hold a hearing, take evidence in the form of sworn affidavits, orfollow whatever other procedures that he considers appropriate to havethe evidence introduced into the record. If the judge determines thatVern’s has filed a timely notice of contest or is otherwise entitled torelief from the final judgment, he should then reach a determination onthe merits as quickly as possible. To facilitate matters, we order thatall further proceedings in this case be expedited in accordance withRule 103 of the Commission Rules of Procedure, 29 C.F.R. ? 2200.103.Accordingly, we set aside the judge’s decision and order dismissing thenotice of contest, and remand this case to the judge for proceedings asset forth above.Edwin G. Foulke,Jr.ChairmanVelma MontoyaCommissionerDonald G. WisemanCommissionerDated: October 12, 1990————————————————————————SECRETARY OF LABOR,Complainant,v.VERN’S MFG., INC.,Respondent.OSHRC DOCKETNO. 89-3082_DECISION AND ORDER_The Secretary of Labor moves to dismiss respondent’s so-called \”latenotice of contest\” to the Notification of Failure to Abate AllegedViolation issued to respondent on August 26, 1988.Section 10(b) of the Occupational Safety and Health Act of 1970 (29U.S.C. Section 651 _et_ _seq_.; hereafter called the \”Act\”) providesthat an employer in receipt of a Notification of Failure to AbateAlleged Violation has fifteen working days from receipt of thenotification within which to notify the Secretary that he wishes tocontest the Secretary’s notification or the proposed assessment ofpenalty. The Act further provides that if the employer fails to sonotify the Secretary within the fifteen working day period, thenotification and the proposed penalty shall be deemed a final order ofthe Commission and not subject to review by any court or agency.On November 7, 1985, respondent was issued a citation alleging aviolation of 29 C.F.R. ? 1910.212(a)(3)(ii), failure to guard the pointsof operation of two Dvorak iron worker machines. Respondent did notcontest the citation but did request modification of the abatement dateon four separate occasions; the final abatement date was March 13, 1987.As a result of a follow-up inspection by OSHA on July 13, 1987, aNotification of Failure to Abate Alleged Violation with a proposed$2,100.00 penalty was issued to respondent for failing to provide properguards on the two Dvorak iron workers. Respondent contested thisnotification on September 8, 1987. This case was settled on November 4,1987, when the Secretary withdrew the Notification of Failure to AbateAlleged Violation and the proposed penalty of $2,100.00.On July 14, 1986, OSHA re-inspected respondent’s place of business. As aresult of this inspection, respondent was issued on August 26, 1988,another Notification of Failure to Abate Alleged Violation and aproposed penalty of $2,100.00 for the alleged failure to guard the sametwo Dvorak iron workers which were the basis of the 1985 citation andthe 1987 Notification of Failure to Abate Alleged Violation. Respondentrequested an informal conference between its representative and the OSHAArea Director, and this informal conference was held on September 7,1988. Respondent, however, never filed a notice of contest to the August26, 1988, Notification of Failure to Abate Alleged Violation or proposedpenalty.After receiving a number of documents from respondent on November 3,1989, including the August 26, 1988, Notification of Failure to AbateAlleged Violation, this Commission docketed this case. The Secretarythen filed her Motion to Vacate Late Notice of Contest.Because of respondent’s failure to notify the Secretary of Labor of itsintent to contest the August 26, 1988, Notification of Failure to AbateAlleged Violation or the proposed assessment of the $2,100.00 penaltywithin 15 working days of its receipt (sometime between August 26, 1988,and September 7, 1988,) the notification and the assessment of thepenalty, as proposed, became a final order of this Commission.Consequently, the Secretary’s motion is granted, and this case is dismissed.SO ORDERED.James A Cronin, Jr.Judge, OSHRCDated: February 12, 1990″